Wednesday, January 22, 2014

You Have a Right to Dish Without Malice ...

The court affirms an anti-SLAPP dismissal because the statements at issue were subject to the qualified common interest privilege in Civil Code §47(c).An insurance investigator learned that a certain chiropractor might have been engaged in some shady practices. She allegedly shared what she learned with the California Department of Insurance as well as an assistant to a personal injury attorney who sometimes referred clients to the chiropractor. As a reward of her efforts, the chiropractor sued her for defamation. As one would expect, the investigator filed an anti-SLAPP motion. The trial court found that the statements arose from protected activity, as defined under Code of Civil Procedure § 425.16(e). And given that the statements were privileged, either under the Civil Code § 47(b) litigation privilege (as to the statements to the DOI) or the § 47(c) common interest privilege (as to the statements to the assistant), the chiropractor could not establish the requisite likelihood of success to fend of the motion. The motion was granted, and the chiropractor appealed.In his appeal, the chiropractor came to his senses and abandoned his arguments about the statements to the DOI, since nobody is ever going to beat an anti-SLAPP motion based on statements made to a government agency. But he pressed on about the investigator’s statements to the attorney’s assistant, claiming that they neither arose from protected activity nor were privileged under § 47(c). In an unpublished part of the opinion (why?) the court holds that the statements were covered under § 425.16(e)(4) because they were statements made in connection with an issue of public concern—namely, insurance fraud. In the published part of the opinion, the court holds that the investigator’s statements to the attorney’s assistant were covered by the § 47(c) common interest privilege. Section 47(c) affords a privilege against liability for defamation—and arguably other torts—that is based on a communication to “a person interested therein” if: (1) the speaker share’s listener’s interest; (2) the speaker and listener have a relationship wherein it would be reasonable to assume the motive for the communication is innocent; or (3) the listener requests the information from the speaker. The contours of “interest” are kind of murky, but a commmon interest reflects some mutually shared business, professional, contractual, or pecuniary interest that goes beyond “mere general or idle curiosity.”

The § 47(c) privilege is qualified. So even if the defendant can establish a common interest, the plaintiff can overcome it if he can show the the defendant acted with malice. The courts have recognized that “malice” under § 47(c) can take one of two forms. It can be what ordinary people think of as malice, like hatred or ill will. Or it can be so-called New York Times malice—after the famous Supreme Court case. That is, that the defendant knew the statement was false or made it with reckless disregard for its truth or falsity.Here, the investigator and the attorney’s assistant shared a common interest. This was not like earlier cases in which parties were found not to share a common interest because their relationship was competitive or adverse. In this case, the assistant had been directed by the attorney to settle a client’s claim. Under the circumstances, defendant and the assistant shared an interest in getting to the bottom of the impediments to settlement, so their interests were sufficiently aligned vis a vis the statements that were made about the chiropractor. (The insurance company was skeptical about settling the claim because she believed the chiropractor’s billing might be fraudulent.) Having found the qualified privilege applied, the burden shifted to the chiropractor to show malice.

He didn’t meet that burden. The only evidence on the issue was his “bare assertion” that the defendant knew the statements were false. That, as a matter of law, is not sufficient to establish malice. As the privilege was unrebutted, the chiropractor could not show the requisite likelihood of success on the merits. So the anti-SLAPP motion was properly granted.Affirmed.

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